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REAL ESTATE He points out that throughout Atlantic Canada, obtaining a clearance certificate after remediating a brownfields land parcel doesn't necessarily mean the purchaser is off the hook. "For lawyers, there is a level of misunderstanding," he says. "Lawyers and their clients think sometimes if the minister has signed off and you've got a clearance certificate, then they have nothing to worry about. But you do when you're dealing with brownfields sites. For the most part in Atlantic Canada, once you've cleaned up a site and have even met the guidelines, there's no complete closure of regulatory liability," says Miller. "So a purchaser who's buying a property that was contami- nated and remediated, and for which a clearance certificate has been issued, they don't have absolute certainty that they won't be called upon in the future to do remediation work in the event the minister decides the standard should change," he says. "Most of the Atlantic provinces don't have a regulation that provides for a closure of liability." British Columbia is somewhat more progressive in address- ing land reclamation. In 2004, it proclaimed the Environmental Management Act, which is described on its web site as legisla- tion that compared to its predecessor Waste Management Act, "provides a more flexible authorization framework, increases enforcement options and uses modern environmental manage- ment tools to protect human health and the quality of water, land and air." Still, there are caveats and uncertainties for lawyers who don't handle such transactions often. Graham Walker, a partner with Borden Ladner Gervais LLP in Vancouver who focuses on transporta- tion and environmental matters, empha- sizes that sales of brownfields lands can be subject to much negotiation while the due diligence involved can be imposing. "You have to do appropriate due diligence and do not limit it to the property," he says. In many circumstances, it is neces- sary to commission tests of soil and water on neighbouring properties as well as undertaking a search of their respective ownership histories. The cost of tests can indeed be a focus of negotiations to determine who should foot the bill, he says. On behalf of buyers in particular, he suggests lawyers obtain remediation covenants from the vendor; even an indemnity clause. "Then you can sue if they say it's clean and it's not," he says. "Or if you told me you cleaned the property but missed something, and I'm later ordered to undertake a cleanup by the environment ministry, I need to get an indemnity clause so I don't have to pay the cost." Walker also touts the availability of environmental insurance, which is offered as a "cost cap policy" that will cover the expense of a subsequent discovery CA058 (CL 1-3sq).indd 1 Happy clerk, Happy work. Our software improves quality of life. Industry leader in legal software for real estate, corporate and estates for over a decade The choice of 2500 law firms, The Conveyancer generates required documents (including lender forms), tracks undertakings, exchanges data with Teraview® (ON) and SPIN (AB) and integrates with four title insurers. Comprehensive corporate records software tracks changes and generates prescribed forms, registers, ledgers, share certificates, resolutions, minutes, correspondence, etc. Integrated e-filing and extracts. The Estate Administration module automates Rule 74/75 forms plus scores of letters and documents. The Estate Accounting module simplifies recording of financial transactions, and generates reports in "passing of accounts" format. Tel: 416.322.6111 Toll-free: 1.866.367.7648 www.doprocess.com Toxic Real Estate Manual Frederick Coburn Combining environmental law with the technical and scientific aspects of site assessment this practical guide keeps you up-to-date and informed on the fundamental principles of private and public liability connected with contaminated property and features pertinent case law in the area of vendor and purchaser transactions, landlord and tenant relations and secured financing. ORDER your copy today Looseleaf & binder • $107 • Releases invoiced separately (1/yr) P/C 0408030000 • ISBN 0-88804-172-1 Key Developments in Environmental Law 2008-2009 (Formerly Environmental Law: The Year in Review) Stanley D. Berger, Dianne Saxe and leading contributors This collection of timely, insightful and judicious articles is written by a cross- section of highly qualified environmental law practitioners from across Canada. ORDER your copy today Hardbound • 150 pp. • May 2009 • Standing order $105 • P/C 0152140000 Current edition only $115 • P/C 0152010000 • ISSN 1920--2512 canadalawbook.ca MERGING TRADITION WITH TECHNOLOGY For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd Prices subject to change without notice, to applicable taxes and shipping & handling. CL0709 www. C ANADIAN Law ye rmag.com JULY 2009 23 6/11/09 9:52:57 AM